Legal AF by MeidasTouch - Is 7 Hours of missing Jan 6 phone logs Trump’s final undoing?

Episode Date: March 31, 2022

The midweek edition of LegalAF x MeidasTouch, the top-rated podcast covering law and politics, is anchored by national trial attorney and strategist, Michael Popok and former prosecutor and leading criminal defense attorney Karen Friedman Agnifilo. On this week’s episode, they discuss: (a) a Federal Judge’s ruling in a case involving Trump’s main legal counselor for the Big Lie, John Eastman, finding that it is likely that Trump committed the crime of obstruction; (b) and update on the New York Attorney General’s efforts to get Trump, Don Jr. and Ivanka to sit for a deposition in her civil investigation; and (c) whether the fact that SEVEN HOURS of Trump’s White House Phone Logs are missing during the Insurrection and the Attack on the Capitol destroys Trump’s “I am not a crook” defense. Special bonus: KFA and Popok talk about their origin story and how they met. Follow Legal AF on Twitter: Legal AF: https://twitter.com/MTLegalAF Karen Friedman Agnifilo: https://twitter.com/kfalegal Michael Popok: https://twitter.com/mspopok Remember to subscribe to ALL the Meidas Media Podcasts: MeidasTouch: https://pod.link/1510240831 Legal AF: https://pod.link/1580828595 The PoliticsGirl Podcast: https://pod.link/1595408601 The Influence Continuum: https://pod.link/1603773245 Kremlin File: https://pod.link/1575837599 Mea Culpa with Michael Cohen: https://pod.link/1530639447 Zoomed In: https://pod.link/1580828633 The Weekend Show: https://pod.link/1612691018 Learn more about your ad choices. Visit megaphone.fm/adchoices

Welcome to the midweek edition of Legal AF. I'm one of your co-hosts, Michael Popak. And I'm Karen Friedman-Egnithalo. And Karen and I have an action-packed segment today. We're going to be talking first about Judge Carter's decision in Eastman versus the JAN-6 Committee, in which he found it was more likely than not than that the president of the United States committed the crime of obstruction and what that all means. We're then going to take on an update of the New York Attorney General, Tish James' attempts and efforts to get Donald Trump, Don Jr., and Ivanka into a room under oath for a deposition in her ongoing civil investigation.

And we're going to conclude the midweek edition with the, what's potentially a cover-up of epic proportions to rival Watergate, the missing seven hours of phone logs at the White House for the President of the United States, Donald Trump at the time on January 6th and what it all means from a prosecutor's standpoint. And you know who's going to be providing that viewpoint. KFA are resident in-house former prosecutor Karen. How are you? I'm really good. Thank you.

How are you? I'm doing great. I see the backdrop. Are you back from the hinterlands of state New York and handling defense cases? Yes, I'm back in New York City. I was in court all week. So while you were being a practicing lawyer, of course, I was too.

I had a rough weekend, Karen. I had not won but two major filings, one before the ninth circuit, court of appeals, reply brief on behalf of a client that we filed it almost midnight last night, and a amended complaint in the same case. And then another brief that was also due because judges don't care about my calendar. They just picked dates that make sense for them.

And everybody said yesterday, and so I had to do that. So when we're not having fun with podcasts, and again, I'm sure of you and I could find a way to make money doing this real money doing this. We would do it only. We would do it only, but we would lose our we would lose our touch or instincts or skills. Exactly. Yeah. That comes from being in that courtroom. So let's talk about first, starting almost chronologically in order from the week. Judge David Carter, who Ben Masalis, my other anchor for the weekend edition of Legal

AF, talked about extensively in a prior podcast, was having to decide over the last month or two. This very interesting but esoteric issue about whether John Eastman, formerly a law professor at Chapman University, who was also apparently Trump's consulieri for all things overthrow, authoring all things obstruction, his go-to lawyer, his Tom Hayden, was John Eastman, who came up with some cockamame and that's a legal term. Some cockamame theory about why the electoral vote count act from like 1887 or whatever

was no longer applicable and could be suspended. So that Mike Pence, Mike Pence, could stop the count and send it back to the States. We all know from a constitutional and legal analysis that that was full of hot air, but he was pushing it at the time. So these emails, you know, 111 emails that he refused to produce the Jan 6th Committee, and he filed a court action.

This is great because it ended up right in his blowing up right in his face. He filed a court action. So the Jan 6th Committee had a file briefing to convince the judge that none of the emails are privileged. No attorney client privilege, no attorney work product privilege. And as we reported two weeks ago, three weeks ago, they filed the Jan 6th Committee filed a brief that said there's another exception

that allows these emails to go to the Jansix Committee. The crime fraud exception of the Attorney Client Privilege, because if you and the lawyer are engaged in conversation that's also potentially perpetuating a crime or fraud, that's an exception. So they argued, Donald Trump is an obstructionist and what a judge Carter do about that, Karen. So this is a very interesting case

because first of all, I think the emails weren't these, didn't Eastman refuse to turn over his emails so then they subpoenaed Chapman University's emails and these were emails from the university. And Eastman objected to those emails that were from the university. On, yes, asserting privilege. So yeah, so he was just refusing to do it at all.

But the university, which by the way, I'm from California, born and raised, I went to UCLA undergrad. I had never heard of Chapman University, which I'm embarrassed. Maybe it's this great university that everybody knows about. But I thought, how do I know? Shout out to Chapman University. We are not here to cast dispersions at that.

No, not at all. I just was so I just didn't know what it was. It was very interesting. So I learned a lot during during this whole process. It's a it's a conservative leaning university very interesting. So I learned a lot during during this whole process. It's a conservative leaning university is something else that I learned. But but interestingly what the judge did here was this is this is sort of a simple case on its face, right? It's it's not a civil matter. It's not it's not a civil action. It's not even a criminal action. It's literally a

It's not a civil action. It's not even a criminal action. It's literally a Decide whether it's a very limited decide whether certain emails are protected by the attorney client privilege And so and that's all the entire scope of this of this matter It's a subpoena enforcement case Exactly, which is I don't know about you, but 44 page decision that could be the subject of an entire law school class, just this decision, I thought was really interesting because he really took the time to go through. You have to go to determine whether something falls within either the attorney client privilege

or the work product privilege, they don't look at sort of a category of documents. The judge goes document by document, email by email, and makes an independent determination as to each of them. And most of them, I think over a hundred were determined not to be a attorney client, and I think only some were. But in order, or I should say to be turned over as part of the privilege and only some were

with hell, I think it was like nine of them or 10 or something like that, some very small number. But what was interesting was as you said, they go through the analysis of first, is it an attorney client, is it part of the privilege and to do that, they have to go and say, well, was this made to an attorney? Yes, was this made for the purpose of hiring the attorney? And I think there's an eight part test of what is the attorney client privilege that the judge went through to kind of educate people. This is what the attorney client privilege is. And for many of these documents, he found that it was part of, it was protected by the privilege, however, it fell within what you just described as the crime fraud exception,

because the crime fraud, otherwise, anytime you wanted to commit a crime, you just go find a lawyer and do it together. And none of those statements could come out in a conspiracy case or anything else. If you could just do that, you can't be shielded by the fact that you have an attorney. There's one inch, can I can interrupt for one second? There's an interesting thing I learned about the crime fraud exception that I probably knew in law school have forgot. It's not necessary to prove that the lawyer knew that he was being used to facilitate a crime or fraud.

It's enough that the client was using the lawyer and getting information and communicating with the lawyer about a potential crime or fraud. So a lot of times when we shorthand it, we make it sound like it's only the situation where the lawyer and the criminal or the defendant are having a conversation about perpetrating a crime. It's enough that the client thinks that they're perpetrating

or is trying to facilitate a crime or fraud. Sorry to interrupt, but that was... No, no, that's important's important. I think it's interesting because you could you could imagine a scenario where a client goes to an attorney and says, you know, here's a suitcase full of cash. Will you help me wander it? And the attorney turns them away and says, no, I will not do that. As you point out, that would not be privileged, even though because the attorney didn't do anything wrong, they did the right thing, but that is not a privileged communication. And I think that's a good point. But back to what I was saying was with the crime fraud exception, because the judge found that,

or had to analyze whether certain communications fell within that, he had to first determine did a crime occur, was a crime committed. And that's how we backed into the statement that you started this with, right, which is that the judge found that it was more likely than not that Donald Trump committed a crime while president of the United States. Which isn't that the first time in history that that's it in the entire republic of 230 years. A president in office has never been found by a federal judge or any judge to have to and I want to to have committed a crime. But with one exception, and this is where our civil versus criminal hats come into play. The judge is not finding by a beyond a reasonable doubt, the criminal standard that it is likely

that the president, Trump at the time, committed the crime of obstruction. I want to be clear about this. He is finding it is more likely than not, the civil standard, the lower standard. Now, I'm not trying to bail out Trump. Right. It's right. The feather on the on one side of the scale or the other, the balance scale. I'm not trying. I want anybody to think and anybody that's listened to 50 or 60 episodes of the show knows I am not defending Donald Trump or his conduct. But I wanted to be clear if we're being accurate

and transparent with our audience and with the legal AFers who who are following us religiously and carefully. It is a lower standard for the judge to have made that declaration as shocking as it is than if he was a prosecutor that like you used to be with a heightened burden, right? Yes, of course, but I will say he didn't just make the assertion. He then spelled out in excruciating detail. Many pages of this decision of why he thinks a crime was committed. I mean, at one point when I was looking through this,

I thought, what is taking certain prosecutors so long, especially with in Georgia, with you know, Ralph Raffinsberger, you know, that whole, just fine. Go find the 11,000, you know, votes. I mean, so much of this was leading up to the judge was talking about the 60 plus court cases where Donald Trump between the election and January 6, where he and his team tried to get courts to rule that there was fraud and saying there is no fraud. And all the different. It was zero for 60. He was the he was, he was the Washington generals.

Anybody that used to follow the Harlem Glove trotters, he was the Washington, he was O and 60 in his case. Yeah. So exactly. So, so the judge just pointed out how, how he was told whether it was in a memo from the White House Council, whether it was, whether it was Pence telling him, no, I can't and won't do this. Whether it was Judge after Judge after Judge saying there's no fraud, whether it was the Georgia Secretary of State saying,

no, I'm not gonna just... Can I ask you a question as a prosecutor? I have two questions. One question and a follow-up. I feel like I met the press conference of KFA. First question, first question. And I've been a big defender of Merrick Garland and the DOJ in this area,

primarily under the thinking that it takes a long time and things are done in secrecy that I don't want revealed about the pace of investigations and prosecutions. However, the Jan 6th Committee seems to believe that Department of Justice is dragging its feet and is waiting around for a referral from the Jansick Committee to do its job when they shouldn't. They now have a federal judge put on your prosecutors hat, which I know you probably never really take off, but put it on for a minute. You've got a federal judge,

as we said at the top of the show, who for the first time just found on any standard, a sitting judge to have committed a crime. You have the Jan 6th committee who laid it out in their brief. That's where the judge is getting it from in a very detailed brief that was filed the end of February. They laid out the entire case for the judge, this email, this email, this tweet, this email, this tweet all from Trump to Pence, to Eastman, back to Eastman, to Trump, to Meadows and all the like. The case is there, the presentation of the case, the opening statement, the closing argument is there. Why hasn't, do you think,

80th Department of Justice is prosecuting it and B, if they have it, why aren't they? Well, then you also have this judge who also said, I think he committed three different crimes, right? He said it was Congress, you know, attempt to obstruct Congress's proceeding to count the electoral votes and violation of 18 USC, 1512, sub C, sub two. I mean, the judge even gave the specific subsection of the crime by crime of all the different. So what's going on with the DOJ? That's the question. So I think a couple of things. I think I don't know whether it's truth or perception, but he really is tough on Don. I don't know what it is about this guy.

He gets away with everything. And because it would be the first sitting president ever, it's, you gotta be 100,000% sure. And you wanna have every single detail locked down. You wanna have every phone record subpoena. And you wanna have every person spoken to, every bank record. I mean, every single thing because you have to be sure and you want to make sure it's that it you're right. I mean, it's this is historically a significant event if he gets,

if he gets indicted. I mean, it would also potentially prevent him from running for office again. I mean, it's it's so significant that I think my thought is there just being extra, extra, extra sure. And yes, these things do take time, but I think it's time. And I think they are investigating it, but you know, they're also, don't forget, Joe Biden campaigned on Luxe Hill and Luxe come together and

Luxe put the past behind us and come together as a country and stopping so divided. You don't know what message they're getting about how important this is and whether to move forward on this. But on that point, then I want to ask you a follow up on that point, and I've reminded at prior podcasts in a different time in a different era with a different president who also committed crimes while in office of Watergate Nixon. The incoming president, President Ford, decided it was the best interest of the unity of

the country to pardon Nixon of all of his crimes And they were bad. They were as bad in some circle. I know people want to be not the gen 6 attack on the Capitol, separate from that. Nixon's was pretty bad. Go back in your history books and books that were to Bernstein and all of that. Speaking of Woodward, he's coming up in one of our stories as well. Yeah, we're going to, it's coming full circle. Thank God Bob Woodward is still with us and still an intrepid investigative reporter. But my point is Ford, President Ford, immediately without real, I mean, I'm sure he thought through it. Partens Nixon.

Nixon goes off and does what every other former president does except for this one, which is basically disappear until about 15 years later when he gives a series of interviews with David Frost, but doesn't do anything to destabilize democracy or the Republic. That was the old days. The new days is everybody wants Trump's head on a pike because as you said, he's gotten away with it and gotten away with so much for so long. Now, here's the follow-up question. Trump knows because he's not an idiot as much as people. He's many things, but an idiot he is not. He's crazy as a fox. His main defense so far seems to be I didn't have the criminal intent. I didn't have what we refer to in the business as men's raya because I really believed what

I was being told by the Johnny Spins of the world, the Mark Meadows, the Steve Bannon's, the Sydney Powell's, the Jenna L Woods, whatever her name was, the Rudy Giuliani's, that I had a good faith legal basis to believe that I had actually won in the election of Stalin for me. Okay, that's his obvious defense. To this day is recently his yesterday on Twitter and what happened, well, no, he doesn't use Twitter on truth, whatever the thing well, no, he doesn't use Twitter on truth, whatever the thing that nobody, nobody watches that he uses. And the letter is that he types out on a typewriter. He keeps, to this moment, he said, and in reaction to this decision by judge

Clark, he says, the election was stolen from me. I believe that and the Democrats are, you know, treasinous and going after me. Why does he continue knowing what all the judges have said, including Judge Clark, knowing about all of this? Why does he continue to double, triple, and quadruple down on the big lie? Why? Look, this judge specifically said and ruled in this decision, disagreeing with a law does not allow you to violate it. And it's clear that he disagrees with all of the rulings and all of the things that you have pointed out. He disagrees that Pence didn't have the power and the authority to do it. He disagrees.

I mean, I think he just disagrees and just can't wrap his head around the fact that he is wrong. And on top of that, when you have lawyers like Eastman who has a pretty decent resume, I mean, you know, he, if I remember, I think he, oh, but let me look at his little, I took a few notes about him. I mean, he's a guy who I think went to an Ivy League school and he served on all these,

he's a unsuccessfully ran for office at one point. I mean, he has a pretty impressive resume to someone like Trump. And if you've got people like him and he surrounded himself with people who told him, this is how the law can be interpreted. And then at the same time, he has all of his supporters.

I mean, don't forget nearly half of America supported him and would say to him You know would sort of continue to fuel add fuel to his fire. I think he just I don't know convinced himself of some sort that He's right and he just can't accept reality. I don't know. That's what I think I I can't pretend to be in his head I don't know why he would go on like this. I have a different theory I've a different theory. Well, you understand Trump then much better than I do because I don't know why he would go on like this. I have a different theory. I have a different theory. Well, you understand Trump then much better than I do. No, no, no.

I don't understand, so I would love to hear what your theory is. Here's my theory. He knows the men's rea defense is bullshit, but he cannot turn back. He's painted himself into a corner. He can't now. There's no upside to him saying, you got me, you're right. I knew I surrounded myself purposefully with jokers,

clowns in the legal profession to call it that, to give me this kind of advice that I wanted to hear because I just can't accept losing. So he's never going to say that. And if he's going to have any shot, you know, there is a shot he could be prosecuted. I mean, whether it's like you said, it's whether it's in Georgia or whether your old office grows a brain and does something. Well, you know who I think is going to prosecute him. I think it's going to be the Southern District of New York. So you've got the Department of Justice by Mara Garland.

And then you've got these US Attorney's offices all around the country. And in New York, we've got, I think we've got three or four different US Attorney's offices in New York state. And one of them is called the Southern District of New York. And that's in Manhattan and the Bronx and Westchester. And they often, for short, it's SDNY,

the Southern District of New York, but some people call it the Sovereign District of New York. And it's sort of a tongue-in-cheek term that is used to describe them because they have always done their own thing and don't necessarily, don't at least appear to necessarily only do what the Department of Justice have.

But the elite squadron of trial lawyers. Yes, the best lawyers, it's a badge of honor to have worked in the Southern District and the people who have worked there pretty much right their own ticket after that. It is a very elite office. And so I'm hoping that, that they will put on their sovereign district hat and, and at least investigate it. If, you know, look, at the end of the day, as you point out, it's a different standard. It's not preponderance of the evidence. It's not more likely than not. It's beyond a reasonable doubt, which doesn't mean beyond a shadow of a doubt. It doesn't mean beyond all doubt, but it means beyond a reasonable doubt, so a doubt with which you can fix a reason.

And so they will analyze it, hopefully, at that level. And if there's a case to be brought, I think they would be the one to bring it, both based on where they're located, as well as, you know, and Trump is here, but also because of who they are. I'm also hoping Georgia steps up. You know, I think that's a clear cut case. Fawni Welles, I'm all in for Fawni. So just, by the way, really quick,

I found my notes on Eastman because there was two things I remember I wanted to mention. I couldn't remember what they were, but now I know why I wanted to mention him. He was a, just because everything comes full circle in our discussions. He was a law clerk for Guess Who, a Supreme Court law clerk for Guess Who. Well, he's too old to have been for Clarence Thomas. No, no, he said former Clarence Thomas clerk.

He's like, he's only like five years younger than Clarence Thomas. Well, you know, I will, I will, I will, I will, I'll double check, but that's what I saw. And I also saw that, that he was the person who wrote the op-ed in August of 2020 that Kamala Harris was not an American citizen, which, you know, that they're recycling these, you know, it's like what they, it's the play, it's a playbook against people of color, you know, it's like what they are. It's the play. It's the playbook against people of color. You know, it's, it's whether it's, whether it's Obama or Harris, it's the same playbook and they all recycle the same arguments. So not to lose the thread. And so once we can move on to the next segment, Judge Clark has ruled Eastman has already announced along with Chapman University that they're both going to comply with the order. the long with Chapman University that they're both going to comply with the order. Trump is no standing, so he's not going to be able to, we don't have to worry about a Trump appeal,

because there's no, he doesn't have standing to appeal. He wasn't even on those emails. He was busy seat on two of them, I think. And he would have to have intervened already. It's too late. And so these, these 101 documents are going over to the Jan 6th committee and we'll report back on that. Let's move on to just Just really quick, before you move on, I just want to say one quote that I thought was brilliant that this judge said, which was that January 6th was a coup in search of a legal theory. And I just thought that was pretty stunning.

Yeah, yeah. The back and forth emails between Eastman and Mike Pence's chief attorney in Eastwing attorney. We were also fascinating. We brought them better and I brought them up before where basically Pence's lawyer in house told Eastman, it's this bullshit theory that you've come up with that has gotten us in to this violence in this mess.

And he's saying this, the email time timestamp is at the moment that the insurrection is boiled over and attacked the Capitol. And he did not mince words in protecting his client, Mike Pence. Let's talk about Donald Trump, Don Jr. Ivanka and the New York Attorney General. We have on one hand something we'll pick up on the weekend, which is Joe Biden, no surprise, as the president holding the executive privilege has waived the executive privilege. And it said to Ivanka and Don Jr. Oh, you don't have any privilege. I hold the privilege. It's waived. You can testify. Go ahead in

front of the Jansix Committee. We'll wait. That's another, we'll talk about that another day, but we have a civil investigation going on also in New York led by Littisha James that we've talked about the last 45 weeks. And now it's reached the point where a judge in the New York State Supreme trial court level in February ordered that Donald Trump, Ivanka, and Don Jr. sit for deposition in the civil case, and they've argued, no, you can't do that. This is a politically motivated, get rid of the prosecutor. They can only criminally prosecute me through the grand jury process and all sorts of other bullshit. And they took the appeal to the first department, And now, Tish James is filed her brief to the first department. And why don't you update

briefly our audience on that? Yeah, so this is the same investigation that we've talked about on a couple of podcasts. It was the parallel joint investigation with the Manhattan DA's office into the under and over evaluation of assets and income, depending on who your audience is, you say that things are worth more or worth less, depending if you wanna avoid paying taxes or take out a bigger loan.

And so it's that parallel investigation. And basically, the parties have pressed pause in enforcement of all of the various requests during the appeal. So they agreed to that. Is that common in civil cases, Popok, for parties to sort of do that? It's very friendly. Yeah, not in a civil case, but in a civil invest, I've been on matters where there's a civil

invest, a gate of agency on the other side. And everybody knows this is going to be taken up on appeal. And they know that either the judge is going to stay it, pending the appeal on a motion, or otherwise, it's a sort of short circuit it. The party's just a great, all right, you don't have to show up on Tuesday for the deposition. Go do your brief, I'll do my brief and let the inevitable pellet court render the decision. So it's not it's not unusual. Civil, civil, not not investigative, two parties against each other very unusual. Oh, okay. So that that's the difference. I was

going to say it seemed very friendly, but now it makes sense what you're saying. Yeah, somebody would have to move in court to stop pending the appeal. And you know, it's probably would be granted. I mean, a trial judge would be going, what's your grounds for it? All right, I'm not going to make it because once the deposition happens, the bell is wrong, it's over. So, I mean, I do see why we should wait for the appellate decision on that, but that's the answer to your question. Yeah. So basically, so, so the where they are is now they're taking an appeal and asking Attorney General James is asking the appellate court to uphold the lower courts ruling that would require would require Donald Trump and his two of his three children Ivanka and Don Jr. to sit for a deposition the way Eric Trump already had to.

And what the lower ruling was and what happened with Eric Trump was he took the fifth. And I think he did it at what 500 times during that, because you have to, you have to take that, you have to assert your fifth amendment privilege question by question. You can't just blanket say, I take the fifth for everything. So you sit there.

So to remind everybody or to educate everybody every every every person has and has a right under the Fifth Amendment to the US Constitution against self-incrimination. And you can it certainly in a criminal case, you cannot be forced to or compelled to testify or provide evidence even in certain circumstances against yourself. In a civil setting, in a civil setting, you can take the fifth, you can take the walk-down fifth avenue as people like you would be like to say, but there's a negative inference that can be drawn from it that a court or a jury, a finder of fact, can imply a negative inference to that assertion. That's why it has to be done

not blankedly as you were as you just outlined, but questioned by question by question. Some people might say he sat there for eight hours and gave the Fifth Amendment answer 500 times. Yes, because they methodically went through why? Because if they're ever in front of a civil jury, they can say, and to the question, we asked Eric Trump, did the Trump organization artificially inflate its assets in order to secure larger loans? Answer, I respectfully decline to answer on the grounds that I might incriminate myself.

Ah-ha, negative inference. You can put that in our wind column as a yes. Right? So, as you pointed, you can't do that criminally because you actually have the right, right? You have a right to remain silent. I mean, everyone's heard them Miranda warnings, you know, anything you do say kind of you, but and you're right and you're assertion to remain silent. You cannot be used against you, but it can't civilly. But let me ask you a question. Wait, wait, wait, how about this? You are sleeping with your secretary, aren't you? I refuse to answer on the grounds that fit the amendment. You look to the jury, you say, put that down as a yes.

So, so that's a, that's a, I've done it. Also, well, hopefully not the sleeping with your secretary part. You mean the assertion part? I'm kidding. I'm kidding. I'm joking. It's a joke. So after the Oscars, there's no more joking allowed by two people at all. Yeah. Well, that was another, that was a, what a week. It's been. Yeah. What a week. That was a shocker. Um, I watched it live. It was, it was surprising live. I will say, I will say. But back to what we were saying, I have a question for you. So say you are having your hypothetical deposition where you're being asked about the crime

and about the crime that potentially you're being accused of and the person takes the fifth. What if the lawyer, because there's no judge present during a deposition, of and the person takes the fifth. What if the lawyer, because there's no judge present during a deposition, right? It's just the lawyer. It could be a special master. I mean, in some of these highs, you know, on some of these high profile depositions, a party could request that a special master, I've had special masters appointed by the court

sit in the room during the deposition. I've had judges sit in the room, agree to sit in the room as the special master, as a referee in case objections come up, especially when it's something that it's this constitutionally pregnant, that's the bad term, these days. Was there someone who's been implicated? Was there a referee or special master in the Eric Trump

one, do you know? Yeah, it's a good question. I don't know that. We should look at it offline and see if we can find that out. Yeah, I mean, so I guess one question. So let's say if there is no referee or even if there is, let's say they they the they start to take the fifth on matters that they could be prosecuted for. But let's say as you say, it does veer off into isn't it true that you slept with your secretary or that sort of thing and no one's going to prosecute that. Those are just sort of immoral or private sort of things. All right. What are you? Can you take the 50 have to answer the question? Like I just

think it's I mean, if it if it if it if it fears off into, I mean, just just another lesson here, teachable moment. You're teaching me. So I'm asking because I'm really carrying the audience. But I want to start I want to start doing civil war. Okay, no problem. So you know, sort of interesting. So, you know, every, every civil discovery matter is bounded by what is either relevant or reasonably calculated to lead to the discovery of relevant information. Sometimes we shorthand that is, is it probative of a certain issue in the case? And if you're in a deposition, and I've been in many, and all of a sudden, they start getting into wandering into things that are not relevant, or they can't really inch with a straight face argue,

is even reasonably calculated to lead to the discovery of relevant evidence. Then you stop the deposition, you tell the court reporter to mark the transcript, because there's a court reporter in the room, you go to the judge. Some judges, you can pick up the phone and ask for the law clerk or the judicial assistant. Hello, Judge Jones' chambers. Yes, we have an important issue that's developed in the deposition of X versus Y. Can we need to talk to Judge Jones?

And the judge, hello, yes, what's happening there? And then, you know, okay, Judge, I'm taking the deposition, here's the Q, here's the A, and I believe, and on the other side argues, and Judge says, you have to answer that question. So you always have to have a judge on call, basically. Yeah, Steve, you can't get them on call. You mark, because of the, since COVID, it's been harder.

You mark the transcript, you leave the issue, you move on in the examination, and then you, you, you file your motions and letter briefs or whatever you're going to do with the court. Court makes a ruling and you go back a week later, two weeks later and finish the deposition on that point. There are boundaries and limits. Again, it's not everything has to be relevant.

The judge isn't making a decision on the ultimate admissibility of the evidence at trial. Because reasonably calculated means it doesn't necessarily have to be relevant at this moment. That's not my burden. My burden is to show that this piece of evidence, Your Honor, this fact that I'm trying to elicit the answer to is going to lead me in good faith, my representation, to a piece of evidence that will one day be admissible at court. So it's links in a chain, but I don't have to be like, well, I don't have to fight court room admissibility at the deposition three years before the trial. So I don't know if I'm allowed to tell the story.

Do it. Well, hopefully you'll, hopefully once I tell it, you'll still be glad that you said do it. But so because I want to learn how to do depositions and I want to do civil work, one day I thought, you know, I'm gonna watch a deposition and I'm gonna do watch my very first deposition and I look on our law firm calendar

and tell me if I should stop. I look on our law firm calendar. It's just curious. Are there any depositions going on today? I know where this is going. Yes, you do. And I swear to God, it was a complete fluke. And I look on the calendar, and I

see that we are doing a deposition of none other than who? Kanye West. Exactly. And I see that Ben Myceles was the lawyer on the case, but he was not doing the deposition. The deposition was being done by a lawyer who I had not met yet. Now my co-host Michael Popack. So I'm like, oh my God, it's Kanye West deposition. What a great first deposition to watch. And I will say it was one of the most entertaining and somewhat sad because he is very clearly, I don't know if you're gonna say this. Let's not go that far. Okay, he was, we'll talk offline on his firm. We'll talk offline, but it was very interesting. And I will say he was not an easy witness.

And you clearly are a master at knowing how to control the witness, which is something you have to be able to do as a trial lawyer or as any kind of lawyer, but just your ability to control a very difficult witness and stay on point and stay on message and not allow the witness. He's very smart, very, very smart man. And he tried to control the deposition and then after what, 12 minutes, 15 minutes,

the screen went blank, 14 minutes, the screen went blank. And for those that find this fascinating, all you got to do, I never thought I never thought I would say the next words. All you have to do is put into Google, Popak and Kanye, and it will pull up articles at the time about that leaked out about that particular deposition. And you'll get more details. But it's funny that you say it that way that you watched it. And look, look at the destiny of you and get more details. But it's funny that you say it that way that you watched it. And look, look at the destiny of you and I becoming friends. I know, right?

Co-anchors together. But I actually had a summer law clerk who was still in law school and an undergraduate clerk at NYU who helped me get ready for the deposition in terms of materials. And I had them both in the room because it was Kanye West. And when the lights went down and the thing was over and everybody was off camera. And I turned to them and said, I've been doing this for over 30 years.

I don't want to disappoint you, but that is the best deposition that you will ever see. Ever. I know. I know. I know. I know. I know. For sure. For sure. I know.

For sure. I know. For sure. For sure. I know. I know. For sure. For sure.

I know. For sure. For sure. For sure. I know. For sure. For sure. I know. For sure. I know. For sure. For sure. I know. For sure. For sure. I know. I know. For sure. I know. For sure. I know. For sure. I know. For sure. I know. For sure. I know. For sure. I know. For sure. I know. For sure. I know. For sure. I know. For sure. I know. For sure. I know. For sure. I know. For sure. I know. For sure. I know. For sure. I know. For sure. I know. For sure. I know. For sure. I know. For sure. I know. For sure. I know. For sure. I know. For sure. I know. For sure. I know. For sure. I know. For sure. I know. For sure. I know. For sure. I know. For sure. I Do you solemnly say to tell the truth? The whole truth is that yes, please state your name for the record. My name is Karen Friedman Agniflo.

Please state the county of residents. Where are you? I have to where he lived. Okay, whatever it was, please state your address or where do you live? That is supposed to be an easy question. You never got past that. You literally never got past that. Yeah, at one point I told him, we have seven hours together.

This is going to be a long day at this rate. But let's turn. Thank you for sharing that. I didn't realize at the beginning it was going to involve me. I appreciate. I didn't either. This was unplanned. It shows that the the makings of this show, this Wednesday, midweek edition, was formed in the crucible of this fascinating deposition, read more online. Let's move to the last segment. It's worth reading more online. Is the video available online?

You should ever get it. Well, there you go. Because that would be, that's worth a price of admission. Anyway, on speaking of prices of admissions, last story. The Jan 6th Committee and Bob Woodward has reported through the Washington Post. And thank God Bob Woodward has reported through the Washington Post, and thank God Bob Woodward is still at the Washington Post in his late 70s and early 80s, still reporting and having access to amazing sources and leaks and all sorts of things

that do is reporting. That the Jan 6th committee and piecing together the official phone log, not the recordings, but the written log that is supposed to be by public record, by national archives, by requirement, is supposed to be kept of every phone call that goes into or out of the White House during a given day. They have determined that there is a seven hour gap and not on any old Monday or Tuesday, on January 6th. Not just any seven hours of January 6th. No, 11, 17 a.m. until 6, 54 p.m. which totally coincides with the attack on the Capitol. Now the attack was from 1253 to 540. No, it's literally the six hours. It's the seven

hours around the six hours of the attack on the Capitol. The first call, the only call that's recorded that morning, the first call at 11.16, he's basically Trump's ordering like a yogurt and then at 6.54, he tries to connect a call with Dan Scavino in between and knowing that there is additional reporting out there, including Jan 6 confirmed evidence through other cell phone records and interviews of 300 people that they've done, that he definitely had phone conversations with Mike Pence, with Mark Meadows, with Senator Mike Lee, and quite likely, like 90% likely, with Giuliani, Eastman and Bannon,

who were holed up in the war room at the Willard Hotel while all of this was going on. And not one. And Kevin McCarthy. And Kevin McCarthy, yeah, 1,000% and not one of these phone calls is recorded on the phone log because Tommy Tuberville or Tuberville. Tommy Tuberville, who was with Mike Lee, who was the senator of Mike Lee.

Now, now I'm going to put your prosecutor hat back on. You have, we have, we have confirmation on one side of the phone that these phone calls took place. You don't have them listed in the phone log. Intentionally, I would argue at all, which means he's either using his cell phone, somebody else's cell phone, or a burner phone, which is a disposable phone that's been handed to him for that particular moment, which somebody just recently on National TV said that he had a discussion with Trump about burner phones. Now, you're a prosecutor. There's a gap in the phone records.

There is a concealment of activity. What do you do with that fact? I mean, first of all, the fact that the word burner phone and president of the United States is being used in the same sentence. I mean, burner phone is used in like episodes of the wire, you know, like that's what that's what that's where the term burner phone comes from. Did you see Bill Crystal? Did you see Bill Crystal's tweet? I didn't. I didn't. Bill Crystal, a conservative Republican columnist, said that I don't know what a burner phone is, which is Donald Donald Trump's defense yesterday Is right up there with the famous Nixon. I am not a crook. Yeah, exactly. I don't know what a burner phone

I mean everyone who's watched a single Crime drama knows what a burner phone is right? It's it is what it is But so what what would I do with this? I mean, it's first of all as Bob that I would do two things. First of all, I think Bob Woodward pointed out he he not he didn't just look at the call records from January 6th. He looked at many many many many records call records of of the Trump presidency and Trump was a frequent phone user. In fact, he talked on the phone. He was known to not email, but he was known to talk on the phone. And if you look at sort of the patterns of his phone usage, it was there were no other seven hour blocks of time, especially other than sleeping, perhaps, where he was not making many, many, many, many phone calls. So you have number one, you look at patterns and you sort of look at, does this make any sense?

And I think Woodward used some kind of a phrase, something like, you know, it's as unlikely as the sun not rising that he wouldn't use the phone during especially a crisis like the January 6th insurrection. So number one, that's number one I would do as a prosecutor as I would have that analysis. And I would show the jury that his call patterns and past history

would show logically that he would be on the phone. The second thing I would do is I would look for confirmation from these, you know, when you talk to someone on the phone, it's not just you, it's the person you're talking to. So I would look for confirmation from these, when you talk to someone on the phone, it's not just you, it's the person you're talking to.

So I would look for the usual suspects and maybe get their phone records and see where those calls are coming in. The ones that you just talked about that we know of because it's been reported, but I would look at others too. The ones that are more probable and look at their phone records and see if there's a common number that's coming up

and try to identify this said burner phone or said other person's phone who he was with. And then the third thing I would do is at trial, I would ask the judge to charge the jury on this wonderful little, this little charge called consciousness of guilt. And if somebody, if somebody, if you believe, that the judge would say to the jury, if you believe that the defendant, in this case would be Donald Trump,

sought to conceal evidence, you are allowed to consider this as consciousness of guilt. In other words, they are both basically saying, okay, I know I did something wrong, so I'm going to try to hide it. And innocent person does not purposely fail to record phone records if they don't think they're doing something wrong. Exactly, it just makes no sense.

That's right. It makes no sense. And in this particular instance, given what we, what we all that we know, I think it's very clear here that he was trying to. I mean, you know, he had to start at a coup. I mean, he had put all the things in motion for January 6. You know, everything that he did between the election and January 6. I think going full circle, I think Eastman had a four scenario work plan laid out for him for January 6th.

And that was one of the documents that they wanted to claim was privileged or work product that shouldn't be turned over. This was a strategy on how to successfully accomplish this coup and this peaceful kind of laying down of the sword for a peaceful transfer of democracy, the way George Washington did. This is again, I'm paraphrasing what was said in that 44-page decision. But it was so clear that there's so much evidence of this ultimate crime.

He was laying the groundwork, laying the foundation. They had a war game strategy of how to do this. They did do it. They went to court. They tried all these things all up until trying to get pens to not certify the electors, you know, doing all these things that were, were just absolutely not permitted, not allowed,

and then encouraging people to stop the steel, stop the certification of the electoral votes. I mean, it couldn't be clearer. I don't understand why there hasn't been a prosecution, but hopefully. So, so let me speak directly to Merrick Garland, Department of Justice. Let's ask our producers. Am I camera one? Okay, camera one. It is time. You have a federal judge who has ruled this week that it is more likely than not that President Donald Trump committed the crime of obstruction.

You have all of the evidence has been assembled by the Gen 6 committee, some of which has been has been already previewed for the Department of Justice and Maricarlin in case he was asleep in filings made both in the Eastman case and in other cases. You have you you have what happened in Atlanta, which is basically public record. You have you know about the New York Attorney General and the Manhattan DA's office prosecutions. You know what's happened in the Manhattan DA's office. So if you thought they were going to take the lead for you and take the heat for you, they're probably not. You may wait around for the Southern District of New York, which is part of the Department of Justice,

but not main justice, or you could do your job and bring the prosecution. This is the first time in 45 weeks or 50 weeks that Michael Popock has looked the audience in the eye and said it is time for Merrick Garland to do his job and prosecute. This is not going to heal the country by not prosecuting. All it's going to do is allow Trump to get away, Scott free, and it's not fair and it's not right, and it's not what this republic is based on. It's beautifully said. Beautifully said. It's like enough. It's enough already.

And the only other thing I will add to that is just from just from a lay person when you when you sort of read about the Manhattan DA investigation and prosecution, that's a little archaic, right? And that's a little, you know, to me, that's a tougher case. The case that can be laid out about the insurrection and the events leading up to this insurrection, to me, that is a compelling case that can be and should be proven and brought. And I think I think you can prove that case beyond a reasonable doubt and I agree with you and be and enough already because if this was just about healing the country, if that were even possible, like healing the earth, is that possible? Then Biden, who say what you want

about, if you're on the other side of the aisle, but, you know, he's a, he's a person that, that is an adult that wants to be a peacemaker and wants to be like FDR with fireside chats, then he would just wave a magic wand and pardon just to be clear, the person receiving the pardon doesn't have to ask for it and doesn't have to agree clear, the person receiving the pardon doesn't have to ask for it and doesn't have to agree to accept it. If the president of the United States, if Joe Biden said for the good of the country, I am going to put an end to all of this.

I am magnanimously going to pardon Donald Trump for all of it, have a slideshow, for all of these crimes one by one. That is that is at least somebody's doing something. But if you're not going to pardon him because you don't believe in your heart of arts as the president of the United States, that it's appropriate to do that. And you want to see justice done, then look down the hallway, the department of justice and make them do their job. So Karen, that's a highlight of our week. Um, yeah, we started, we started our cultivating of this episode when it, in real time, with like, let's do Will Smith and Chris Rock. And then, and then,

and then the federal judge declared Trump a criminal. And we said, maybe we should focus on that. Exactly. I mean, there, there was one question that did come up in Twitter about the Will Smith and Chris Rock thing, though, that we can answer fairly quickly, which is. You do it, then we'll end the episode. Good. Okay. It was just, and I just thought it was an interesting question. And the question was, can the LADA's office or the LAPD investigate the assault or the slap of Chris Rock by Will Smith without, if

it looks like Chris doesn't want to press charges because it was reported he doesn't want to press charges. And then the LAPD said we will investigate if Chris presses charges. And the question is who brings charges. And I thought that was an interesting question. And certainly putting aside that case, just in general, worth just sort of a one minute answer. And interestingly, in a civil case, it would be Chris Rock versus Will Smith.

And you have a person's name, a V, and then a person's name, because a civil case is really a person versus a person. But in a criminal case, at least in New York, it's the people, the people of the state of New York versus the individual who you're prosecuting. And that would be the same in every state, you know, the people of the state of California, or if it's a federal prosecution, it's the United States government versus the individual. And what I always told all my victims and witnesses who may be afraid, especially in sexual assault cases

or domestic violence cases, you often had people who were afraid to come forward and afraid that there would be revenge or retaliation against them for cooperating with law enforcement. And I used to tell them, but it's not you versus the individual. It's the people of but it's not you versus the individual. It's the people of the state of New York versus the individual.

It's not your decision. It's actually the government's decision to bring the case. And that brought not only comfort to certain people, but it also allows a case to be brought. It allows you to subpoena someone's testimony. So I thought it was a little strange that the Los Angeles police department said, we'll see if he decides to press charges because that's not really a thing.

It's really, it's on national television. It was recorded. It's, you know, it's basically, they, if they wanted to, they could easily make their own determination. And as I tell people all the time, in every murder case, you don't have a victim. You don't have someone pressing charges because that person's dead. And the government steps in and presses charges on their out. It's true. Yeah, I know. And somehow, and somehow we're able to prove those cases without a victim and without the testimony of a victim. And often they're the only person who's in the room with the other person. Without a live, without a live victim testifying. Without a live victim testifying. So at the point, my point is if I thought it was a little too

cute by half to say if he wants to press charges were here, because that gets them out of it. And it's fine. I'm not saying he should be prosecuted in some way. But Holly would control. This is the Holly would control. I'm not apining that he should or should not be prosecuted. It is, you know, everyone, it's been analyzed to death

and I'm not going to analyze in any way what happened. I just wanted to answer that. I thought really good mailbag question that people, several people asked us to answer is whose decision is it? So, so thank you for the opportunity to answer that question. That was mailbag, ladies and gentlemen. That was mailbag. So we've reached the end. You've been listening to the midweek edition, the Wednesday edition of Legal A.F. with Michael Popok and Karen Friedman Agniphalo, and we're going to do it all again this time next week. Karen, what do you think about all that? I love it.

I think it's great. I mean, too. And we'll see you next week. you